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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

Local
3979, American Federation of Government Employees, AFL-CIO (Union), filed a
request for assistance with the Federal Service Impasses Panel (Panel) pursuant
to the Federal Employees Flexible and Compressed Work Schedules Act of 1982
(Act), 5 U.S.C. § 6120 et seq., to resolve an impasse arising from a
decision by the Department of Justice, Federal Bureau of Prisons (BOP), Federal
Correctional Institution (FCI), Sheridan, Oregon, not to establish a 6-12-8
compressed work schedule (CWS) for certain employees working in the Correctional
Services Department (CSD).

Following
an investigation of the request for assistance, the Panel determined that the
impasse should be resolved through an informal conference by telephone with
Panel Member Richard B. Ainsworth. The parties were informed that if no
settlement was reached during the informal conference, Member Ainsworth would
notify the Panel of the status of the dispute. The notification would include,
among other things, his recommendation for resolving the matter. After
considering the information, the Panel would take final action in accordance
with 5 U.S.C. § 6131 and 5 C.F.R. § 2472.11 of its regulations. The parties
were also directed to submit statements of position prior to the informal
conference. Accordingly, an informal conference by telephone was conducted by
Member Ainsworth on March 6, 2003; the parties, however, were unable to resolve
their dispute. The Panel has now considered the entire record, including the
Employer’s pre-conference and the parties’ post-conference written
submissions, and Member Ainsworth’s recommendation for resolving the dispute.

BACKGROUND

The
Employer’s mission is to protect society by confining criminal offenders in
the controlled environments of prison and community-based facilities that are
safe, humane, and appropriately secure. CSD is responsible for the day-to-day
custody and security of over 1,900 inmates. The Union represents 318 employees
who work as correctional officers, teachers, vocational specialists,
secretaries, and accounting specialists, at GS-5 through -11 and WG-5 through
-9. Some 94 bargaining-unit employees are correctional officers assigned to CSD.
The parties’ master collective bargaining agreement (MCBA) expired on March 8,
2001; its terms remain in effect until negotiations over a successor agreement
are completed.

In
accordance with section 6131(c)(2)(b) of the Act, the issue in dispute is
whether the findings on which the Employer bases its determination not to
establish a 6-12-8 CWS in CSD is supported by evidence that the schedule is
likely to cause an adverse agency impact.(2)

POSITIONS OF THE PARTIES

1. The
Employer’s Position

The
Panel should find that the evidence on which the Employer bases its
determination not to implement the proposed CWS in CSD establishes that the
schedule is likely to cause an adverse agency impact, as defined under the Act.
The proposed schedule, if implemented, would: (1) reduce the institution’s
productivity; (2) diminish the level of service the institution furnishes to the
public (inmates, staff, and the law enforcement and local communities); and (3)
increase the costs of agency operations. It is important to note at the start
that, although the impact of implementing the Union’s proposed CWS at FCI
Sheridan is admittedly speculative, the Employer’s determination is reinforced
by the reported findings of other FCIs within the BOP that have experimented
with CWSs in their CSDs.

With
respect to reductions in productivity, implementation of the Union’s proposed
CWS would severely alter Lieutenants’ duties,(3) undercutting their overall
effectiveness, particularly their ability "to accurately reflect the
performance level of staff," and to provide the level of security that the
CSD demands. Currently, Lieutenants spend about 4 to 6 hours of their workday
making roster adjustments due to unscheduled absences and the need to schedule
overtime. The time devoted to desk work would increase not only because of the
complexities of handling numerous scheduling options in such a large operation,
but because the software program used for developing and tracking 8 and 10-hour
schedules is not designed to be used for preparing 12-hour shift schedules.(4)
Lieutenants would have to use an alternative, more time-consuming method for
scheduling employees working 12-hour shifts. Further, the 12-hour schedule would
have to be used in conjunction with the schedules prepared with the computer
program in order to ensure that all posts are filled, simultaneously
incorporating the requirements of all three shifts (8, 10, and 12-hours). All of
this would have to be accomplished without running afoul of the seniority
provisions of the MCBA. The importance of complying with MCBA provisions at FCI
Sheridan is more than just theoretical.(5) The Union’s proposal, therefore, is
also inappropriate because it could put the Employer in the position of
violating provisions of the MCBA concerning distribution of overtime, as well as
provisions concerning the maximum length of employees’ workdays.

By
reducing the amount of time Lieutenants spend on non-administrative activities,
the proposed CWS also would diminish the level of services furnished to the
public, which includes inmates, staff, volunteers, contract employees, visitors,
and the local community. The primary impact would be in the area of safety,
where less time interacting with inmates and the correctional officers they
supervise would increase the likelihood of "escapes and disturbances."
The Union’s proposal also would have a negative impact on the level of safety
because working 12-hour shifts would make correctional officers "less alert
and less aware of his/her surroundings." In this regard, several journal
articles support the position that employees working a 12-hour schedule would
experience fatigue and be less alert at a time when "alertness is
essential."

Finally,
a review of the costs incurred at the FCIs in Allenwood, Pennsylvania, and
Elkton, Ohio, reveals that they have experienced significant increases in
overtime as a result of implementing 4/10 CWSs; 12-hour shifts at FCI Sheridan
would likely exacerbate such problems. Among other things, overtime costs would
increase because it would take two employees working 8-hour shifts to replace an
employee working a 12-hour shift who is on sick or annual leave; normally, one
8-hour shift employee would cover for another 8-hour shift employee. In
instances where employees would be working their short day (8-hours), it would
be necessary for the Employer to add an additional shift for these employees,
and the probability is high that this would involve overtime. The additional
work requirements also would be a burden on employees who have personal plans,
are single parents, or have been working a shift without a meal break. While the
Union "blithely assumes" that the "holes" left in the CSD
roster "can be filled by mandatory overtime," as a Government
facility, FCI Sheridan must be a "good steward of the taxpayer
dollar."

2. The
Union’s Position

The
Panel should find that the Employer has not met its burden under the Act. The
information the Employer relies on in making its determination is
"misleading." Contrary to the Employer’s assertions, implementing
the CWS would increase employee productivity; employees would be able to spend
more time with their families, less time commuting to and from work, and save on
vehicle maintenance and gasoline. Thus, they would be "more willing to go
the extra mile and do extra tasks." Further, the Employer’s contention
that working 12-hour shifts would negatively impact employees’ health and the
institutions’ safety is erroneous; employees normally work 16-hour shifts with
no ill effects to either employees or the institution.

As
to the increased costs reported at the Allenwood and Elkton FCIs, the CWSs at
those facilities are not comparable to the one the Union is proposing at
Sheridan. Furthermore, the Employer’s interests regarding Lieutenants
maintaining a presence with inmates would be met under the 6-12-8 CWS.
Lieutenants would be able to spend less time administering work schedules, and
more time increasing their visibility with inmates and correctional officers;
the Employer would "gain an extra $56,000 in additional services from the
Lieutenants a year under [the] proposed CWS." In addition, overtime costs
would not increase; the procedure used for distributing overtime under the
6-12-8 CWS and the 5/8 work schedule would be the same. Actually, the Employer
would realize cost savings because it would only have to "hire for two
shifts, not the three [it does] currently." An added benefit would be that
fewer employees would call in sick since fewer employees would be working, thus,
the pool of employees available for overtime duties would be expanded.

CONCLUSIONS

Under
section 6131(c)(2) of the Act, the Panel is required to take final action in
favor of the agency head’s (or delegatee’s) determination not to establish a
CWS only if the finding on which it is based is supported by evidence that the
schedule is likely to cause an "adverse agency impact." As its
legislative history makes clear, Panel determinations under the Act are
concerned solely with whether an employer has met its statutory burden. It also
establishes that in hearing both sides of the issue, the Panel is not to apply
"an overly rigorous evidentiary standard," but must determine whether
an employer has met its statutory burden on the basis of "the totality of
the evidence presented."(6)

Having
carefully considered the record before us, we conclude that the Employer has met
its statutory burden. After evaluating the totality of the evidence, we are
persuaded that, among other things, the implementation of the 6-12-8 CWS would
reduce the productivity of the Lieutenants who are responsible for ensuring that
staffing levels involving significant numbers of posts are adequate to meet the
around-the-clock security needs within the CSD. In this regard, they would have
to monitor at least two different rosters (one of which is not automated), and
make frequent adjustments when employees on the CWS return to an 8-hour schedule
or use sick or annual leave unexpectedly. These additional duties would reduce
the amount of time the Lieutenants spend maintaining visibility with inmates,
and could compromise the institution’s ability to maintain inmate control. It
would also make them less effective as supervisors. While the impact that the
Union’s proposed CWS would have on overtime costs is less predictable, it is
sufficient for the purposes of the Act if only one of its three criteria have
been met. Accordingly, we shall order the Union to withdraw its proposal.

ORDER

Pursuant to the
authority vested in it by the Federal Employees Flexible and Compressed Work
Schedules Act, 5 U.S.C. § 6131(c), the Federal Services Impasses Panel, under
§ 2472.11(b) of its regulations hereby orders that the Union withdraw its
6-12-8 CWS.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

May 23, 2003
Washington, D.C.

1.
CSD currently operates three 8-hour shifts per day, 7 days per week. The shifts are: midnight to 8 a.m., 8 a.m. to 4 p.m., and 4 p.m. to midnight. Under the Union’s proposed CWS, in one standard pay period (80 hours), employees would work six 12-hour days, one 8-hour day, and have 3 consecutive regular days off. Employees scheduled to work holidays would work their usual 12-hour shift.

(2) a diminished level of the services furnished to the public by the agency; or

(3) an increase in the cost of operations (other than a reasonable administrative cost relating to the process of establishing
a flexible or compressed work schedule).

The burden of demonstrating that the implementation of a proposed CWS is likely to cause an adverse agency impact falls on the employer under the Act. See 128 CONG. REC. H3999
(daily ed. July 12, 1982) (statement of Rep. Ferraro); and 128 CONG. REC. S7641 (daily ed. June 30, 1982) (statement of Sen. Stevens). Moreover, under the Act employers are only required to
demonstrate adverse agency impact under one of the three criteria in 5 U.S.C. § 6131(b) to meet their burden of proof.

3.
Lieutenants are supervisory correctional officers (SCOs). Currently, the CSD at FCI Sheridan has a total of 15 Lieutenants.

4.
The parties have apparently agreed to a limited number of 4/10 CWS
posts in the CSD, although procedural aspects relating to implementation
of the schedule remain unresolved.

5.
Of significance in this connection is a previous arbitration decision
involving overtime distribution which “resulted in a $455,000 payout
which is under dispute at this time.” Another grievance concerning
overtime disbursement errors also has been filed by the Union.

The agency will bear the burden in showing that such a schedule
is likely to have an adverse impact. This burden is not to be construed to require the application of an overly rigorous evidentiary standard since the issues will often involve imprecise matters of productivity and the level of service to the public. It is expected the Panel will hear both sides of the issue and make its determination on the totality of the evidence presented. S. REP. NO. 97-365,
97th Cong., 2d Sess. at 15-16 (1982).